Nassau County Aggravated Vehicular Assault

N.Y. Pen. Law § 120.04-a

A car, truck, SUV, van, ATV or snowmobile are not just vehicles that get you from one place to another. Under some circumstances they are dangerous instruments that can seriously injure or kill. If you operate a vehicle while you are intoxicated it becomes a dangerous instrument very similar to a knife or a gun in that a vehicle can cause a serious physical injury. Under New York Penal Law if you injure someone due to driving while intoxicated you will be charged with vehicular assault. New York Penal Law defines three different types of vehicular assault offenses, the most serious of which is aggravated vehicular assault. Because it is a Class C felony if you are convicted not only will you lose your driving privileges you may be sent to prison for up 15 years. Furthermore you will be required to pay thousands of dollars in fines and restitution, and you will have a criminal record. Because of what is at stake, if you have been charged with aggravated vehicular assault it is critical that you immediately contact an experienced Nassau County Aggravated Vehicular Assault Lawyer who will review the facts of your case and work closely with you to develop an aggressive defense to the charges.

Requirements for an Aggravated Vehicular Assault Charge

You will face a charge of aggravated vehicular assault if you drive recklessly while under the influence of drugs or alcohol and cause serious physical injury to another person. To face an aggravated vehicular assault charge based on being intoxicated by alcohol, your blood alcohol level must be least .08. It is a Class C felony. N.Y. Pen. Law § 120.04-a. This charge is similar to vehicular assault in the first degree. However, the primary difference is that to face aggravated vehicular assault you must have driven the vehicle recklessly. Reckless driving is defined in the New York Vehicle and Traffic Law as driving a motor vehicle in a manner that unreasonably interferes with the proper use of a public highway or unreasonably endangers other users of a public highway. N.Y. VAT. Law § 1212

Aggravated vehicular assault requires that the victim suffer a serious physical injury. Serious physical injury is defined as an injury that is so severe that it creates a substantial risk of death, causes death, causes protracted disfigurement or impairment of health, or causes loss of a bodily organ. N.Y. Pen. Law § 10.00.

Defense to a Vehicular Assault in the Second Degree Charge

Determination of Intoxication. When law enforcement performs a chemical test to prove that you are intoxicated, the test has to be performed so that the results are unassailable. You can challenge the accuracy of the chemical test that was used by the prosecutor as evidence that you were intoxicated. A wide range of factors can affect chemical tests, making such a test inaccurate. For example, the consumption of food or medication could impact the accuracy of a chemical test. You may also have a defense related to how the test was administered. New York has rules that must be followed as to how chemical tests must be administered and how the equipment must be calibrated.

Type of Injury. The lack of seriousness of the victim's injury may provide a defense to a charge of vehicular assault in the first degree. New York courts will look closely at the medical evidence to determine as to whether or not the victim suffered a serious injury. Factors which courts may consider include whether the victim had to undergo surgery, whether any vital organs were damaged, whether there was a significant loss of blood whether the victim experienced a great deal of pain, and whether the victim lost consciousness.

Arrest and Arraignment

If you are arrested for aggravated vehicular assault the first hearing you will have to attend is your arraignment. At your arraignment hearing you will learn the exact charges against you. In some cases the charges will be different from what you expected. Based on a review of the evidence the prosecutor may decide to raise or lower the charges, or to add additional charges. With an aggravated vehicular assault charge additional charges often include driving while intoxicated, assault in the second degree, and reckless endangerment. During the arraignment hearing you will also learn whether or not bail will be required. In the days or weeks following your arraignment, several different steps may occur in your case's criminal process. For example, because aggravated vehicular assault is a felony the prosecutor will likely present your case to the Grand Jury. The prosecutor may offer you a plea deal that would require you to plead guilty in exchange for the charges being reduced or in exchange for an agreed upon sentence. If you are not able to reach a plea agreement with the prosecutor then your case will go to trial.

Consequences of a Vehicular Assault in the Second Degree Conviction

If you are convicted of vehicular assault in the second degree your sentence may include prison, payment of fines and fees, probation, and loss of driving privileges.

Prison

Because aggravated vehicular assault is a Class C felony the maximum possible sentence is 15 years in prison. N.Y. Pen. Law § 70.00. However, the judge has the option of not sentencing you to any time in jail, but to probation. The actual sentence you will receive will be based on a number of factors, including your prior criminal record.

If you have no prior convictions, the judge may sentence you to probation. If your status is that of a violent or nonviolent predicate offender, then the court will sentence you to at least 3 to 6 years. If you are a persistent felony offender, then the minimum sentence you will receive is 15-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.10.

  • Prior convictions: Prior convictions include felony convictions within the last 10 years.
  • Non-Violent Predicate: A non-violent felony conviction within the last 10 years.
  • Violent Predicate: A violent felony conviction within the last 10 years.
  • Persistent Felony Offender: At least 2 prior felony convictions.

For example, in the case of In the Matter of Benedict, 968 N.Y.S.2d 875 (2013), after being convicted of aggravated vehicular assault, defendant Tabber Benedict was sentenced to 3 1/2 to 10 years in prison.

Probation

If you are convicted of aggravated vehicular assault your sentence may include probation. If so, your probation term will be for 5 years. There will be several rules that you must follow while you are on probation. N.Y. Pen. Law § 65.10. The rules may be slightly different for each person, but may include that you must not commit a crime, you cannot leave the State of New York without permission from your Probation Officer, you must not associate with people who have criminal records, you must not patronize disreputable places, you must not possess a firearm, you must not use or possess a controlled substance, you must refrain from consuming alcohol excessively, you must stick to a curfew, you must have a job or attend school, you must support your family, you must notify your Probation Officer of a new address, and you must regularly report to your Probation Officer.

If your Probation Officer believes that you have violated any of the terms of your probation, a warrant may be issued for your arrest. You will have to appear before the judge that originally sentenced you. The possible consequences for probation violation include being permitted to stay on probation with additional terms, additional sentencing for new offenses, probation being revoked and you being sent to prison.

Fines, Fees and Restitution

Part of the consequences of being convicted of aggravated vehicular assault is that you will have to pay a fine, fees and restitution that will add up to thousands of dollars. The fine for a felony conviction is up to $5000. The fees include a "mandatory surcharge" of $300, a victim assistance fee of $25 as well as probation supervision fees of $30 per month.

You may also be required to pay restitution to the victim. Restitution is compensation that as part of your sentence the court may order you to pay the victim. Restitution typically includes reimbursement for medical bills, counseling expenses, and loss of earnings and replacement of damaged property. Generally, the maximum amount of restitution is $15,000, plus a 5% surcharge. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses. If you do not pay a fine, fee or restitution as ordered by the court, you may be sent back to prison. These financial obligations are part of your sentence. This means that you will not have served your full sentence until you fulfill your financial obligations.

Loss of Driving Privileges

If you are convicted of aggravated vehicular assault your license will be suspended or revoked for several months or for well over a year. If your license is revoked you will have to apply to get it reinstated. In addition, there are fees associated with restoring your driving privileges if your license has been suspended or revoked. If you are found to be driving a vehicle without a valid license you will be charged with aggravated unlicensed operation. You will have to pay a fine and you may be sent to jail.

Long-Term Consequences

Even after you serve your prison term, probation term and pay your fees, fines and restitution, there will be additional long-term consequences to being convicted of vehicular assault in the second degree. You will have a criminal record that may make it challenging to find employment. You will be barred from certain careers and professional licensing such as teaching, practicing law, and operating a child day care business. You will be ineligible for certain government benefits such as welfare or federally funded housing.

Injuring someone in an accident that results from reckless driving and intoxication is a serious crime that can change the course of the rest of your life. You could be sent to jail for several years, losing precious time with your family and friends. You could be required to pay thousands of dollars in fees, fines, and restitution. Your driving privileges will be suspended or revoked. You will have a permanent criminal record. However, just because you were charged with aggravated vehicular assault does not mean that you will be convicted as there are many ways to challenge such a charge. Thus, if you have been arrested for aggravated vehicular assault or any other type of vehicular assault it is important to immediately contact someone who has extensive experience representing clients in New York criminal courts. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with vehicular assault, as well as other types of assault. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of assault in the following locations:

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